N. N. MATHUR, J. ( 1 ) THE petitioners in these two Special Civil Application are employees of the High Court of Gujarat in the cadre of Assistants. By way of these Special Civil Application under Art. 226 of the Constitution of India, they have challenged the promotion of respondent Nos. 2 to 15 on the post of Section officers. Both the Special Civil Application rest on similar facts, raise common question of law, except in Special Civil Application No. 351 of 1998, wherein the validity of Rule 47 (2) of the High Court of Gujarat (Recruitment and Condition of Services of Staff) Rules, 1992 (hereinafter referred to as the rules of 1992), is also challenged, are heard together and disposed of by the common order. ( 2 ) THE Honble the Chief Justice of the Gujarat High Court, in exercise of powers conferred by Art. 229 of the Constitution and all enabling provisions, framed the Rules governing the service conditions of all the members of the High Court Staff known as High Court of Gujarat (Recruitment and Condition of Services of Staff) Rules,. 1992. The said Rules repealed the earlier Rules of 1964. Rule 4 of Rules of 1992, categorises staff of the High Court in four classes. Higher posts of registrar General down upto Assistant Registrar is placed in the category of Class I Officers. Category of Class II Gazetted Officers consist of Section Officers, Private Secretaries to Honble Judges etc. Class III, Non-Gazetted posts consists of Stenographer Grade II, Junior Clerk, Driver etc. Class IV consists of Jamadar, Peon etc. Rule 47 provides for promotion on different posts. Promotion on the post of "section Officer" is effected from the post of Assistants and Translators strictly on merit and on the basis of record performance. Essential eligibility for promotion is passing prescribed Departmental Examination and five years experience on the post of Assistant or Translator. ( 3 ). In July, 1997, the Registrar commenced the process of promotion for the post of Section Officers. The vacancies were determined in accordance with the government Resolution of General Administration Department dated 27-1-1978, as follows : ( 21 ) IN the case of Union of India v. M. L. Capoor, reported in AIR 1974 SC 87 , the Apex Court pointed out that "merit" is capable of being judged from different angles. The vacancies were determined in accordance with the government Resolution of General Administration Department dated 27-1-1978, as follows : ( 21 ) IN the case of Union of India v. M. L. Capoor, reported in AIR 1974 SC 87 , the Apex Court pointed out that "merit" is capable of being judged from different angles. The Court, in para 17 said, thus -"merit is certainly an elusive factor capable of being judged very differently from different angles or, by applications varying tests of it by different persons, or, by the same persons, at different times. "in the said case, passage from Leonard D. Whites "introduction to Public administration" had been referred with approval by the Court wherein it is said that the principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The Court further said that the main interest to be served is the public interest not the personal interest of the members of the official group concerned. In case of selection on merit the Court warned in these words :"no doubt, care has to be taken that it is so operated as to really secure the choice of the most meritorious by honest and rigorous applications of correct and proper tests. "thus, there is heavy duty cast upon the employer to evolve a correct and proper test and then to apply the same correctly. It is needless to emphasize that merit is given due weight age in the matter of promotion, especially for senior appointment, to ensure greater efficiency in the functioning of the establishment and also to provide adequate incentives to the employees to give their best. Once promotion by merit alone is provided in the recruitment rules, the first stage is evolution of proper mechanism for determination of merit and the second stage is its rigorous and honest application. A sound mechanism or process to determine the merit is of vital importance. If the promotions are governed by faulty process not only the object of the rule to have person of merit on selection post will be defeated, but the "left-outs" will in all probability continue floating in the same establishment nursing grievances against employers. The consequent low morale will affect the smooth and effective working of the establishment. If the promotions are governed by faulty process not only the object of the rule to have person of merit on selection post will be defeated, but the "left-outs" will in all probability continue floating in the same establishment nursing grievances against employers. The consequent low morale will affect the smooth and effective working of the establishment. The merit can be judged applying various tests, which includes written test to judge intellectual ability, knowledge of the relevant rules, power to analyse a problem, application of relevant rules and power of clear and lucid expressions; assessment of past performance to judge character, integrity, punctuality, leadership, tact, imagination, behaviour and courtesy, rich experience gained through career in service, administrative qualities, ability to carry on with staff. This can be done by proper and scientific assessment of service record and Annual Confidential Reports; oral test to judge personal qualities, broad outlook, oral expression, general get-up, some intellectual qualities which cannot be tested by written examination, physique, etc. Thus, the Honble Chief Justice, in his wisdom, while exercising the powers under Art. 229 of the Constitution of India, in framing Rule 47 of the Rules of 1992, provided combination of three components, i. e. , past performance, written test and oral test for determination of merit in the matter of promotion on selection post. However, the mechanism evolved prior to 1992 has been carried forward, unmindful of the fact that it does not contain the important component of "past performance". Without over-emphasizing the importance of "past performance", it cannot be disputed that for recruitment from among the persons of matured personality, appraisal of past performance is the basic and essential requirement. It is also not in dispute that the system of writing Annual Confidential Report is in existence in the high Court establishment. It is of course true that it has been subject to criticism to certain extent, but for that efforts can be made to bring change therein by substituting a new and more open Participatory Appraisal System. The comparative merit could be assessed by taking into consideration, the Annual Confidential Reports. Dealing with seniority in judging the merit, it is true that seniority occupies the back seat in case of selection purely by merit, still, it cannot be ignored completely. The comparative merit could be assessed by taking into consideration, the Annual Confidential Reports. Dealing with seniority in judging the merit, it is true that seniority occupies the back seat in case of selection purely by merit, still, it cannot be ignored completely. The apex Court in the case of Union of India v. M. L. Capoor (supra), while considering different angles of merit, observed that seniority is also one of the several factors affecting the assessment of merit as comparative experience in service. The court suggested that there should be certain number of marks allotted for the purpose of facilitating evaluation of each year of the experience gained in service. ( 22 ) IN the existing process of selection, while out of 80 marks, 60 marks are occupied by written test, no marks are assigned for past performance. Annexure E (D) at page 39 in Special Civil Application No. 351 of 1998 is the only question paper to assess merit by written test. A glance at the paper indicates that perhaps it is to test capability to draft submissions in different situations. These are the usual and routine drafts known in every establishment. Thus, if a person for the time- being can cram few routine drafts of submissions, he can acquire a bright chance of promotion on selection post, marching over large number of other employees in the name of merit, irrespective of the fact that his service record is not good, and A. C. R. indicates negative qualities or in any case, does not indicate any positive quality. In the instant selection, it is alleged that the respondent No. 2 M. P. Parmar and respondent No. 3 Miss V. M. Desai have been selected on merit basis, even though-there is adverse remarks in their A. C. R. This fact is not disputed by the additional Advocate General. This clearly exposes the merit of the process of selection, applied for determination of merit. The exaggerated weightage given to written test, at the cost of total exclusion of past performance is arbitrary, unfair and contrary to Rule 47 of the Rules of 1992. Thus, the process of selection through which the respondent Nos. 2 to 15 have been selected is not only wrong and unsatisfactory, but it also being in disregard to the mechanism provided under Rule 47 of Rules of 1992, is held to be illegal and void. Thus, the process of selection through which the respondent Nos. 2 to 15 have been selected is not only wrong and unsatisfactory, but it also being in disregard to the mechanism provided under Rule 47 of Rules of 1992, is held to be illegal and void. ( 23 ) DEALING with the second limb of the contention, i. e. , selection of persons of average merit in the name of proven merit, it is significant to notice that Rule 47 (2) stipulates "proven merit", not merit simpliciter. Thus, it completely excludes average merit by securing minimum pass marks. Such bare pass marks may bring a candidate in the zone of consideration, but such persons cannot be said to be persons of "proven merit". I am fortified in my view by the decision of the Apex Court in Janki Prasad v. State of Jammu and Kashmir, reported in AIR 1973 SC 930 . In the said case, the Court observed in para 19 that when promotion is by selection, the merit takes first place and it is implicit in such selection that man must not be just average. In the instant case the merit of the selected candidates, respondent Nos. 2 to 15, as found by the Selection Committee, is as under :